No. 10-1753 _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _____________________________________________ MARGARET TEMPLETON, Plaintiff-Appellant, v. FIRST TENNESSEE BANK, N.A., and METLIFE BANK, N.A., Defendants-Appellees. ________________________________________________ On Appeal from the United States District Court for the District of Maryland, Hon. William D. Quarles, Jr., Judge ________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF TEMPLETON AND FOR REVERSAL _________________________________________________ P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 131 M Street, NE, Room 5SW24L Acting Associate General Counsel Washington, DC 20507 (202) 663-4055 CAROLYN L. WHEELER gail.coleman@eeoc.gov Assistant General Counsel GAIL S. COLEMAN Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 A. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Templeton's complaint that her former employer refused to rehire her in retaliation for her previous objections to sexual harassment alleges sufficient facts to create an inference of illegality consistent with the pleading standards of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. . . . . . . . . . . . . . . . . . 6 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Addendum: Templeton's Complaint Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). . . . . . . . . . . . 1, 8-10, 11, 12 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . 1, 6-8, 10, 11, 13 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001). . . . . . . . . . . . 10 Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009). . . . . . . . . . . . . . 11, 13 Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009). . . . . . . . . . . . . . .14 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). . . . . . . . . . . . . . 12 Holland v. Washington Homes, Inc., 487 F.3d 208 (4th Cir. 2007). . . . . . . . .13 King v. Rumsfeld, 328 F.3d 145 (4th Cir. 2003). . . . . . . . . . . . . . . . . 10 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . 12 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . 11 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . 13 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). . . . . . . . . . . . . . .12 Zoltec Corp. v. Structural Polymer Grp., 592 F.3d 893 (8th Cir. 2010). . . . . .12 Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq 1 Rules Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 8(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Fed. R. Civ. P. 10(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Civ. P. 12(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Other Authorities Dawinder S. Sidhu, First Korematsu and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court's Disregard for Claims of Discrimination, 58 Buff. L. Rev. 419 (Apr. 2010). . . . . . . . . 16 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as other federal anti- discrimination statutes. This case is among the first to interpret the pleading standards announced by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and elaborated upon in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Because the same standards apply to complaints filed in private suits and EEOC enforcement actions, the EEOC has a strong interest in advocating against heightened pleading requirements that would terminate a federal discrimination claim before there has been any opportunity to conduct discovery. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE Did the district court err in dismissing the complaint for failure to state a claim where Templeton alleged facts sufficient to create an inference that her former employer refused to rehire her because she had complained of sexual harassment and retaliation by her immediate supervisor? STATEMENT OF THE CASE This is an appeal from the district court's dismissal of the complaint for failure to state a claim pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure. A. Statement of Facts Margaret Templeton worked as a loan officer for First Horizon National Corp.<1> "on and off" from 1986-2006. (R.3, Complaint at 4.) At the time of her resignation, she was in the top quarter of producers nationwide and earned in excess of $200,000 annually in commissions. (Id. at 7.) Templeton alleges that in October 2005, she was sexually harassed by her immediate supervisor, branch manager Robert Cameron. (Id. at 4.) She complained about the harassment to Jerrie Koenig, senior vice president, who told her, "If you do anything about this, you will either have to be transferred or leave the company." (Id.) Two months later, a coworker told Templeton that Cameron had sexually harassed her as well. (Id. at 4-5.) Templeton reported this additional incident to two people: (1) Koenig, who said that only Theodore "Chip" Reichart, Jr., president, could remedy the problem, and (2) Al Ingram, a branch manager, who said, "We didn't have this conversation," and agreed with Koenig that only Reichart could take action. (Id. at 5.) With no one else helping her, Templeton reported the alleged harassment to Reichart. (Id.) Reichart reprimanded Templeton for having put herself into a situation where Cameron could harass her. (Id.) He then conducted an investigation, the outcome of which is not disclosed in Templeton's complaint. (Id. at 6.) Soon thereafter, Cameron began retaliating against Templeton for having gone to Reichart. He refused to speak to her for six months, unplugged her phone and computer, and poured liquid in her chair. (Id.) Templeton complained to Brenda Mengle, employee services relations manager, about Cameron's retaliation. Mengle assured her that Koenig would follow up on the complaint, but Koenig did nothing. (Id.) In June 2006, Templeton resigned. (Id.) Her resignation letter, which is attached to her complaint, says in part: After so many productive years with [First Horizon], it is unfortunate that I find myself in a position where I have to continue my career elsewhere. I think the world of [First Horizon] as a company - the corporate culture coming out of Texas and Tennessee through multiple media sources and corporate meetings - is a "cut above." Sadly, there seems to be a disconnect between [First Horizon] corporate culture and the practices in our local region. As you are well aware, I have had some painful years in our Severna Park Branch. I have tried for years through many paths to work around these troubles - which included sexual harassment by my immediate supervisor as well as retaliation for my having told his supervisor of his discriminatory conduct. That said, over the past year it has become increasingly clear that I can no longer deal with the toxic environment created by the local management and allowed to fester by higher management. (R.3-1, Ltr. at 1.) Two years later, after Cameron had left First Horizon, area manager Peter O'Donnell and office sales manager Mark Siefert separately contacted Templeton and asked her if she would return. (R.3, Complaint at 7.) Templeton expressed interest in the possibility. A short time later, O'Donnell called Templeton to rescind the offer. O'Donnell said that Reichart had stopped the hiring process, saying that First Horizon would "absolutely not" rehire Templeton because she had "issues with management." (Id.) Templeton sued, alleging in part that by blocking her rehire, Reichart was illegally retaliating against her for her earlier complaints of sexual harassment and retaliation. (Id.) B. District Court Decision The district court dismissed Templeton's lawsuit and entered judgment on the pleadings. (R.27, Slip Op.) Citing Iqbal, the court held that Templeton had not alleged facts that would permit a reasonable inference of retaliation. (Id. at 5.) "Reichart's alleged statement that Templeton had 'issues with management,'" the court said, "is the only fact connecting his refusal to hire her with her past reporting activities. But this general statement, made without reference to Templeton's previous reports of sexual discrimination, is insufficient to show a causal connection between that protected activity and the decision not to rehire her." (Id. at 11 (citing O'Neal v. City of Chicago, 588 F.3d 406 (7th Cir. 2009)).) The court added that "a causal connection . . . cannot be assumed based on the temporal proximity of the two events because Templeton made her harassment reports more than two years before Reichart refused to rehire her." (Id. (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).) The allegations, the court concluded, did not "state a claim to relief that is plausible on its face." (Id. at 5 (citing Twombly). Summary of Argument The district court wrongly required Templeton to allege in her complaint specific facts that she could not know until after discovery. This pleading standard makes no sense in light of the ease with which the Supreme Court allows discrimination plaintiffs to state a prima facie case. Because a plaintiff is entitled to logical inferences in order to win on the merits, such inferences should also be available at the pleading stage. Additionally, when a plaintiff alleges the existence of a causal connection between her protected activity and an employer's adverse action, that allegation is one of fact which must be presumed true. The district court considered none of these points in dismissing Templeton's complaint for failure to state a claim. This Court should reverse and remand. Argument Templeton's complaint that her former employer refused to rehire her in retaliation for her previous objections to sexual harassment alleges sufficient facts to create an inference of illegality consistent with the pleading standards of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. The district court imposed an unwarranted and unrealistic pleading standard in this Title VII case. Because Templeton has stated a plausible claim to relief, this case should be remanded for discovery. Nothing in Twombly or Iqbal requires otherwise. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court repudiated the longstanding principle that courts could dismiss a complaint for failure to state a cause of action only if it "appear[ed] beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 561-63 (quoting Conley v. Gibson, 335 U.S. 41, 78 (1956)). In its place, the Court announced a new rule requiring complaints to include "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Acknowledging that courts must accept all factual allegations in a complaint as true, the Twombly Court distinguished factual allegations from "labels and conclusions." Id. at 555. "Rule 8(a)(2) [of the Federal Rules of Civil Procedure] still requires a 'showing,' rather than a blanket assertion, of entitlement to relief," the Court said.<2> Id. at 555 n.3. "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. The Twombly Court held that "factual allegations must be enough to raise a right to relief above the speculative level," id. at 555, and said that a complaint should be dismissed if its factual allegations do not "raise a reasonable expectation that discovery will reveal evidence of [the misconduct alleged]." Id. at 556. Applying this rule to the facts of the case before it, the Twombly Court held that the plaintiffs had failed to state a cause of action that major telecommunications companies had illegally conspired, in violation of the Sherman Act, to prevent competitive entry into local markets and to avoid competing with each other in their respective markets. "[W]hen allegations of parallel conduct are set out in order to make a[n antitrust] claim," the Court said, "they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action." Id. at 557. Viewing "the suggestions raised by this conduct . . . in light of common economic experience," id. at 565, the Court pointed to "an obvious alternative explanation" that "former Government-sanctioned monopolists were sitting tight, expecting their neighbors to do the same thing." Id. at 567-68. Because the plaintiffs had not provided a factual basis to infer that the parallel action stemmed from a conspiracy, the Court concluded that the plaintiffs had not "nudged their claims across the line from conceivable to plausible." Id. at 570. Two years later, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Court expounded on the rule it had set forth in Twombly. The plaintiff in Iqbal was a Muslim Pakistani who was arrested on criminal charges shortly after the September 11, 2001, terrorist attacks and was detained by federal officials. Iqbal alleged that he was deprived of clearly established constitutional rights while he was in prison. In the lawsuit reviewed by the Supreme Court, he sought to sue the Attorney General and the Director of the FBI for allegedly adopting an unconstitutional policy that subjected him to harsh conditions while in federal custody on account of his race, religion, or national origin. Iqbal, 129 S. Ct. at 1942. To prove his claim, Iqbal would have to prove that the defendants acted with the intentional purpose of discriminating. Id. at 1948. The Supreme Court held that Iqbal's complaint provided insufficient facts from which a court could reasonably infer purposeful discrimination. Id. at 1952. "Two working principles underlie our decision in Twombly," the Court said. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not shown [ ] that the pleader is entitled to relief." Id., 129 S. Ct. at 1949-50 (quoting Twombly, 550 U.S. at 555-56). Considering the post-September 11 context of Iqbal's arrest and detainment, the Court said, "on the facts respondent alleges the arrests [the FBI Director] oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that 'obvious alternative explanation' for the arrests and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion." Id. at 1951-52 (citing Twombly, 550 U.S. at 567). The Court added that, even accepting the truth of Iqbal's factual allegation that the defendants had adopted a policy approving "restrictive conditions of confinement" for post September 11 detainees, "the complaint does not show, or even intimate, that [defendants] purposefully housed detainees in the [administrative maximum secure housing unit] due to their race, religion, or national origin. All it plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity." Id. at 1952. Because Iqbal's complaint "d[id] not contain any factual allegation sufficient to plausibly suggest [defendants'] discriminatory state of mind," the Court concluded, "[h]is pleadings . . . do not meet the standard necessary to comply with Rule 8." Id. The district court in the instant case misapplied the two key principles of Twombly and Iqbal. First, courts must separate facts from legal conclusions. Twombly, 550 U.S. at 555. As before, they must accept all factual allegations as true. Id. (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)). Important to the instant case, the causal connection between protected activity and an adverse action is a fact, not a legal conclusion. Causal connection is often inferred from mere temporal proximity between the protected activity and the subsequent action. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Here, Templeton left her job because managers failed to respond to her complaints of harassment, and the subsequent failure to rehire her two years later thus lacked the close temporal proximity that can support an inference of causation (although the gap in time is explained by her absence). See King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003) (context critical to evaluating significance of 2 month 2 week delay between protected conduct and adverse action). Lacking close temporal proximity, Templeton alleges that Reichart's stated concern about her prior issues with management shows the causal link. The fact that Templeton's nonhire was expressly related to her prior issues, one of which was the handling of her harassment complaint, is enough to support the factual inference of causal connection. The court's view that the "issues with management" comment is too general to suggest a causal connection without a "reference to Templeton's previous reports of sexual discrimination," (Slip Op. at 11), improperly usurps a jury's role of making plausible inferences from the facts. Second, Twombly and Iqbal instruct that allegations in a complaint must be viewed in context, and certain contexts make an inference of wrongdoing more or less plausible. See Twombly, 550 U.S. at 557; Iqbal, 129 S. Ct. at 1940; see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009) (Twombly imposes a "context-specific test"); Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009) ("the height of the pleading requirement is relative to circumstances"). For this reason, when Twombly alleged, based solely on parallel conduct, that major telecommunications companies had engaged in an antitrust conspiracy, the Supreme Court looked at "common economic experience" and held that inferences of conspiracy were only speculative. Twombly, 550 U.S. at 565. Likewise, when Iqbal alleged that the Attorney General and the Director of the FBI had purposefully discriminated based on race, religion, or national origin in establishing policies permitting harsh conditions of confinement for post- September 11 detainees, the Court considered that the policies, if any, would have been adopted in the immediate aftermath of a major terrorist attack. It was that context, the Court said, that rendered Iqbal's complaint implausible. Iqbal, 129 S. Ct. at 1952; see also Zoltec Corp. v. Structural Polymer Grp., 592 F.3d 893, 895 (8th Cir. 2010) (assessing fraud complaint in the context of "reasonable, sophisticated business entit[ies]"). Here, the district court should have evaluated Templeton's complaint in the context of the workplace realities of common employment decisions. In that context, plaintiffs alleging discrimination must meet only a "minimal" burden to raise an inference of illegality. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Because the Supreme Court presumes that employers act rationally, Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978), it has required plaintiffs to eliminate the most common business reasons for a challenged decision in order to state a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (plaintiff must disprove lack of qualifications or absence of a vacancy). Likewise, a plaintiff alleging retaliation has the burden of proving an adverse action was caused by her protected conduct, and to do so, she must show that her employer was aware of her protected activity before taking adverse action against her. Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). These minimal showings are enough to shift the burden to the employer to articulate a legitimate, nondiscriminatory/nonretaliatory explanation for the challenged action. Id. In the absence of such explanation, a jury may (but need not) find that the employer's action was illegal. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000) ("once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision"). Given that a plaintiff may prove discrimination or retaliation with no more than a prima facie case, Reeves, 530 U.S. at 147-48, the "height of the pleading requirement" for discrimination or retaliation is necessarily low. See Cooney, 583 F.3d at 971. As the Supreme Court has explained, "Asking for plausible grounds . . . does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [illegality]." Twombly, 550 U.S. at 556. Remembering that all factual allegations must be accepted as true, id. at 555, this standard renders virtually all employment discrimination complaints plausible. This Court's opinion in Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009), provides a rare example of an implausible discrimination complaint. There, a former city police commissioner and two former deputies filed a multi-count complaint against the mayor, city solicitor, and members of the police department, alleging, inter alia, that the defendants had violated their rights against unreasonable search and seizure and their rights to due process. Two of the plaintiffs were black males and one was a white male. In Count II of the complaint, the plaintiffs alleged that the defendants had discriminated against the two black males, but not against the white male, on the basis of their race. They stated in support of this allegation that the defendants "have never initiated or undertaken the actions of terminating employment and physically removing the employee against white members of the Police Department." Id. at 195. Noting that elsewhere in the complaint the plaintiffs had alleged "the exact same treatment" against the white plaintiff, the Court said, "These allegations are not only conclusory and insufficient to state a § 1981 claim, they are patently untrue . . . . We thus conclude that Count II does not on its face state a plausible claim for relief." Id. (internal citation omitted). Templeton's complaint is nothing like the inadequate pleading in Francis. Her complaint not only fails to negate her allegation of retaliation, it provides an unusually high degree of factual support for her claim by detailing her protected conduct and her employer's response to her complaints, as well as linking that response to the subsequent decision not to rehire her. Templeton alleges that supervisors who ranked below Reichart said that they had no authority to remedy sexual harassment. (R.3, Complaint at 5.) She also alleges that Koenig hinted at Reichart's hostility to sexual harassment complaints, warning her, "If you do anything about this, you will either have to be transferred or leave the company." (Id. at 4.) Templeton states that when she complained to Reichart his initial response was to criticize her for placing herself in a position where she could be harassed. (Id. at 5.) She also alleges that after Reichart investigated, no one stopped the harasser from retaliating against her over the next six months. (Id. at 6.) In her resignation letter, which she attached to her complaint,<3> Templeton referred to the recent sexual harassment and unaddressed retaliation, and then said, "it has become increasingly clear that I can no longer deal with the toxic environment created by the local management and allowed to fester by higher management." (R.3-1, Ltr. at 1.) These background facts give meaning to Reichart's statement that he would not rehire Templeton because she had "issues with management." (R.3, Complaint at 7.) As the resignation letter makes clear, at least some of Templeton's "issues with management" involved management's failure to remedy the sexual harassment and to prevent the ensuing retaliation. The court's view that this did not meet the plausibility requirement amounts to a requirement of direct evidence of motivation. In the overwhelming majority of employment discrimination cases, plaintiffs will not have access to the decisionmaker's reasoning until after they have engaged in discovery. See Dawinder S. Sidhu, First Korematsu and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court's Disregard for Claims of Discrimination, 58 Buff. L. Rev. 419, 486 (April 2010) ("direct evidence of intent generally is rarely unearthed in the course of litigation, let alone possessed at the pleadings stage"). In this sense, Templeton was lucky. However, plaintiffs may state a plausible claim as long as they provide facts from which a reasonable jury could infer a discriminatory or retaliatory intent. Even without Reichart's statement about "issues with management," for instance, his hostility to Templeton's sexual harassment complaint and his failure to prevent retaliation would be enough render her complaint plausible. Reichart's statement makes her complaint even stronger. Conclusion The district court's interpretation of Twombly and Iqbal puts an unrealistic burden on employment discrimination plaintiffs to allege facts in their complaint that they most likely will not learn until discovery. This onerous pleading standard stands in stark contrast to the minimal burden that plaintiffs bear in proving a prima facie case and shifting the burden to defendants to articulate a legitimate, nondiscriminatory/nonretaliatory explanation for their adverse action. Templeton alleged ample facts in her complaint to support her allegation of illegal retaliation. This Court should now reverse the dismissal of her complaint and remand for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel /s Gail S. Coleman ____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov Addendum CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I certify that this brief was prepared with Microsoft Office Word 2010 and Microsoft Office Word 2003, and that it uses the proportionally spaced Times New Roman font, size 14 point. I further certify that this brief contains 3,757 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Office Word 2003 word-count function. s/ Gail S. Coleman_________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE,, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed eight paper copies of the foregoing amicus brief with the Court by first-class mail, postage pre-paid, on this 7th day of September, 2010. I also certify that I submitted the amicus brief electronically in PDF format through the Electronic Case File (ECF) system. I further certify that I served the foregoing amicus brief electronically in PDF format through the ECF system this 7th day of September, 2010, to the following counsel of record: Joyce E. Smithey Lesley Pate Marlin Rifkin, Livingston, Levitan Venable, LLP & Silver, LLC Terrell Place 225 Duke of Glouscester St. 575 7th Street, NW Annapolis, MD 21401 Washington, DC 20004-1601 Ronald W. Taylor Carson Hobbs Sullivan Venable, LLP Paul Hastings Janofsky & Walker, LLP 750 East Pratt St., Suite 900 875 15th Street, NW Baltimore, MD 21202 Washington, DC 20005-2400 s/ Gail S. Coleman_________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE,, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov *********************************************************************** <> <1> First Tennessee Bank, a named defendant, is a subsidiary of First Horizon National Corp. Metlife Bank, N.A., the other named defendant, acquired First Horizon in September 2008. (R.3, Complaint at 3.) <2> Rule 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." <3> See Fed.R.Civ. P. 10(c) ("A copy of any written instrument which is an exhibit to the pleading is a part thereof for all purposes.").